Contract, Performance and breach. Practice, Civil, Exceptions, Mistrial. If a yacht builder, who has contracted in writing to build for a customer a yacht intended for a racing boat, which will not be worth anything if not fitted for racing, after the customer has paid two instalments of the purchase money amounting to almost half of the price, receives from the customer a letter suggesting that the boat may be sold in Providence in Rhode Island instead of being used at Chicago in Illinois, and if the fitting of the boat to go to Providence to race ought to be different from the fitting the boat should have to go to Chicago to race, the receipt of this letter may justify the yacht builder in stopping work on the boat until he has learned from his customer whether the boat is to be sold in Providence or is to be used in Chicago, but it does not justify him in selling the boat to a third person and retaining the proceeds, and, if he does this, he is liable in damages for his breach of contract.
In an action of contract, where, on exceptions alleged by the defendant after a verdict for the plaintiff, the defendant contended that there was a mistrial in regard to the measure of damages, but no exception was taken to the rulings of the presiding judge on this point, and there was nothing to show what the ruling of the judge was as to the measure of damages, there was nothing to indicate error; and it was not necessary to consider whether a remark made by Bigelow, C.J., in Bond v. Bond, 7 Allen, 1, 6, as to the possibility of the court considering matters not strictly before them when the record shows clearly that the case resulted in a mistrial, is not to be taken to apply merely to a motion for a new trial.
LORING, J.
The letter of April 29, taken in connection with the defendant's testimony which was admitted in evidence (that she was a racing boat and not worth anything if not fitted for racing), and also taken in connection with the testimony that was excluded (that the fitting of the boat if it was to go to Providence to race ought to be different from the fitting the boat ought to have if it was to go to Chicago to race), might have justified the defendant in stopping work on the boat until he learned from the plaintiff whether he sold her to the "Providence people" who wanted to buy her. See in this connection Crossan v. New York New England Railroad, 149 Mass. 196. But that is not what the defendant did. In the words of the bill of exceptions "The boat was subsequently finished by the defendant and sold by him. The proceeds of the sale were kept by him." The letter is not a justification for the action which the defendant took.
The defendant has urged upon us that there was a mistrial in the measure of damages, and that there should be a new trial although no exception was taken to the instructions given by the presiding judge on this point. We have no means of knowing what the ruling of the judge on the measure of damages was. For that reason it is not necessary to consider whether the remark of Bigelow, C.J., in Bond v. Bond, 7 Allen, 1, 6, relied on by the defendant, is not to be taken to apply to a motion for a new trial, as was the case in Ellis v. Ginsburg, 163 Mass. 143, the other case relied on by him in this connection.
Exceptions overruled.